Missouri judge weighs whether new abortion ban should appear on 2026 ballot

A Cole County judge heard arguments Wednesday over whether a proposed ban on abortion set to go to voters next year should be thrown out or revised over a provision targeting gender-affirming care for minors.

The ACLU of Missouri believes the proposal, which was drafted by state lawmakers, violates the state constitution because it includes multiple subjects. The group also contends the summary that would appear on the ballot is misleading.

If the courts decide to keep the measure on the ballot, plaintiffs are asking that the ballot summary be revised to explicitly state that the measure would ban abortion.

If approved by a simple majority of voters, the abortion ban amendment would repeal a citizen-led reproductive rights amendment that passed last November legalizing abortion in Missouri up until the point of fetal viability and enshrining other reproductive rights in the constitution, including in-vitro fertilization and contraceptives.

The new amendment would reinstate an abortion ban, allowing limited exceptions for medical emergencies, fatal fetal anomalies and for survivors of rape and incest in the first 12 weeks of pregnancy.

The current language written by the Missouri General Assembly makes no mention of the ban it would enact.

Instead, Missourians would be asked if they want to amend the Missouri Constitution to:

• Guarantee access to care for medical emergencies, ectopic pregnancies, and miscarriages;
• Ensure women's safety during abortions;
• Ensure parental consent for minors;
• Allow abortions for medical emergencies, fetal anomalies, rape, and incest;
• Require physicians to provide medically accurate information; and
• Protect children from gender transition?

Missouri statute states, "petitions for laws shall contain not more than one subject which shall be expressed clearly in the title."

Chuck Hatfield, an attorney with Stinson LLP representing the plaintiff on Wednesday, argued that the inclusion of the gender-affirming health care ban was "ballot candy" meant to win over more voters but is a separate issue from reproductive health care.

Recent polling by St. Louis University/YouGov shows that while the majority of polled Missouri voters support access to abortion, the majority also oppose access to gender-affirming health care for minors. 

"You can't say to the people, 'Here's a proposal whether the Chiefs should stay in Kansas City and to ban crypto,'" Hatfield said.

Missouri Solicitor General Louis Capozzi, defending the proposed amendment, told Cole County Circuit Judge Daniel Green on Wednesday that gender-affirming procedures can cause the loss of fertility. Therefore, he believes reproductive health care "applies to all people who are thinking about whether to have children."

Capozzi said the latest proposed amendment "ensures that Missouri children are able to make the choice whether to reproduce when they are adults," adding that if someone is "unable to reproduce, they can't access reproductive health care."

Annelise Hanshaw / Missouri Independent

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Missouri Independent

Last year, anti-abortion leaders were unsuccessful in convincing the courts to throw the abortion rights amendment off the ballot by claiming it violated the single subject rule. At the time, an attorney for the Thomas Moore Society argued unsuccessfully that the subject of that amendment, "a person's fundamental right to reproductive freedom," encompassed "infinite subjects."

Hatfield on Wednesday accused the legislature and Missouri Secretary of State Denny Hoskins of misrepresenting what the amendment would do through both the language voters will see on the ballot and the ballot language posted at every polling station around the state next to sample ballots.

Hoskins' ballot language currently reads: "A 'no' vote will not amend the Missouri Constitution to allow abortion in cases of medical emergency, fetal anomaly, rape, or incest, or to protect children from gender transition."

Under the current law, abortion is legal up until the point of fetal viability in Missouri and gender-affirming health care for minors is banned.

"It's ridiculous; it's wrong," Hatfield said of the ballot language. "The current constitution guarantees those rights and to imply otherwise is wrong, it's highly argumentative."

Capozzi argued the legislature was working with a word limit and that it was more important to state what the amendment would do. Summary statements, he said, need not detail specific exceptions.

The proposed amendment also requires any lawsuits related to reproductive health care to be filed in Cole County and gives the Attorney General's Office the right to intervene in these cases. The plaintiffs in the lawsuit said there is no legitimate connection to reproductive health care, as "health care is not generally provided in courtrooms."

Hatfield suggested Green "tell the General Assembly to give it another shot in compliance with the constitution."

Green did not immediately rule on the challenge to the abortion ban amendment. A day earlier, he also heard arguments in a case challenging a new law set to go into effect Thursday that changes the deadlines and procedures for challenging and revising ballot language. Green's determination in that case could affect how he's allowed to proceed in regarding the ballot language.

Despite the current law, abortion access remains tenuous in Missouri.

Three Planned Parenthood clinics — in Kansas City, Columbia and St. Louis — have resumed procedural abortions on a limited schedule that was briefly interrupted over the summer when the courts overturned and then reinstated a temporary injunction allowing some abortions to resume ahead of a trial slated for January.

But Planned Parenthood and the Missouri Attorney General's Office are slated to meet in court a handful of times before then.

At a hearing set for Sept. 10 in Kansas City, Planned Parenthood plans to argue in favor of undoing a number of laws they say are currently preventing its clinics from prescribing medication abortion in Missouri.

That same day, down the street, the Western District Court of Appeals is slated to hear the Missouri Attorney General's Office's appeal of an injunction that allowed procedural abortions to resume in Missouri in February.

This story was originally published by the Missouri Independent.

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